State of Minnesota, Respondent, vs. Timothy John Nelson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-2200

 

 

State of Minnesota,

Respondent,

 

vs.

 

Timothy John Nelson,

Appellant.

 

Filed October 21, 2003

Affirmed

Robert H. Schumacher, Judge

 

Redwood County District Court

File No. K501622

 

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michelle A. Dietrich, Redwood County Attorney, Redwood County Courthouse, Post Office Box 130, Redwood Falls, MN 56283 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge; Lansing, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Timothy John Nelson appeals from a conviction and sentence for two counts of aiding and abetting the sale and possession of a controlled substance in the first degree in violation of Minn. Stat. §§ 152.021, subds. 1(1), 2(1) (2000) (sale and possession of methamphetamine), and one count of aiding and abetting the possession of a controlled substance in the second degree in violation of Minn. Stat. § 152.022, subd. 2(1) (2000) (possession of methamphetamine).  The district court did not abuse its discretion in admitting the controlled substances into evidence.  The record contains sufficient evidence to corroborate accomplice testimony.  We affirm.

FACTS

Nelson drove Jose Luis Yanes to the Jackpot Junction Casino Hotel on November 19, 2001 and rented Room 215.  Yanes brought cocaine and methamphetamine into the room and Yanes and Nelson smoked some of the methamphetamine.  Nelson left the room for the night and returned early the next morning accompanied by a 17-year-old girl.  Nelson and the girl smoked methamphetamine and then all three left the room and traveled to Hutchinson in Nelson's car.  In Hutchinson, while Nelson and the girl washed clothes at a laundromat, Yanes purchased a large  bag of methamphetamine.

            After Nelson and Yanes left the hotel, housekeeping entered Room 215 for cleaning and found drug paraphernalia in the room.  Nelson later telephoned the hotel, inquired about renting Room 215 for another night and asked whether housekeeping had been in the room.  Hotel personnel told Nelson he could rent the room again.  At approximately 2:30 p.m. Nelson arrived at the hotel and checked into Room 215.  When Nelson, Yanes, and the girl arrived at Room 215, they were arrested.

On November 20, 2001, Chief Robert Scott of the Lower Sioux Indian Community Police Department seized three bags of controlled substances at the hoteltwo small bags found in Room 215 and one large bag found in the girl's purse.  Scott collected these items in pillow cases and placed them inside a compartment in the back of his police vehicle normally used for utility devices and tools.  The substances were held in Scott's police vehicle for transportation.  At all other times, Scott kept the substances in a locked police department safe at the Lower Sioux Community Center.

            Sometime after collecting the evidence, Scott took the substances to the Redwood County Sheriff's Department for inventory and preliminary weighing.  Weights taken at the sheriff's office determined the smaller bags each weighed one ounce, or 28 grams, and the large bag weighed between 240 and 270 grams.

Scott transferred the substances to Bureau of Criminal Apprehension Special Agent Brian Marquart on November 21, 2001.  The substances remained in his evidence safe from November 21 through November 26.  Marquart delivered the substances to the BCA lab on November 26, 2001.  The laboratory determined weights of 12 grams of methamphetamine, 12.5 grams cocaine, and 214 grams methamphetamine.   The laboratory returned the substances to Scott by mail.

D E C I S I O N

1.         Nelson argues the trial court abused its discretion in admitting the methamphetamine where there was a significant discrepancy between the weight of the material at the time of seizure and its weight when tested, there was a possible five-day gap in accounting for the controlled substances, and the state did not negate other evidence suggesting the possibility of tampering.

"Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  Chain-of-custody issues are left to the sound discretion of the trial court.  State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976).  Proper chain of custody requires testimony of continuous possession by each individual having possession, together with testimony by each that the object remained in substantially the same condition during its presence in his possession.  State v. Hager, 325 N.W.2d 43, 44 (Minn. 1982).

In this case, each witness in the chain of custody testified to his or her continuous possession of the methamphetamine and cocaine during the relevant time period.  There was no testimony asserting Scott or Marquart did anything to alter the evidence.  Scott and Marquart testified that the physical evidence at trial was substantially the same as the substances each transported and possessed during the relevant investigation period.  Yanes, Nelson's accomplice, at first testified that the exhibit of the methamphetamine was smaller than the amount of methamphetamine he purchased in Hutchinson but later testified the exhibit was the methamphetamine he put into the girl's purse.

Nelson raises several issues in support of his argument that the state did not negate the possibility of tamperingdifference in weight of the methamphetamine at the time of seizure and time of laboratory testing, use of pillow cases to collect the evidence, a witness's lack of memory at trial regarding details of the evidence inventory list, misplacement of photographs, commingling of evidence seized on different days, and affidavit ambiguities regarding chain of custody.

The state need not negate all possibility of tampering or substitution as a prerequisite to admissibility.  Id.

Admissibility should not depend on the prosecution negativing all possibility of tampering or substitution, but rather only that it is reasonably probable that tampering or substitution did not occur.  Contrary speculation may well affect the weight of the evidence accorded it by the factfinder but does not affect its admissibility.

 

Johnson, 307 Minn. at 505, 239 N.W.2d at 242; see also Berendes v. Comm'r of Pub. Safety, 382 N.W.2d 888, 891 (Minn. App. 1986) (chain of custody found sufficient where it was established with reasonable probability that no tampering occurred); McDonald v. State, 351 N.W.2d 658, 660 (Minn. App. 1984) (presence of only four of ten pills following testing went to weight of evidence), review denied (Minn.  Oct. 16, 1984).

In this case, the inconsistencies pointed to by Nelson may be considered by the jury in weighing the evidence.  The chain of custody of the evidence was adequately established.  The district court did not abuse its discretion in admitting the evidence.

2.         Nelson argues his conviction is based primarily on the testimony of Jose Luis Yanes, Nelson's alleged accomplice, for which there was insufficient corroborating evidence.  The sufficiency of the circumstantial evidence to corroborate an accomplice's testimony that the defendant participated in the crime is reviewed in the light most favorable to the verdict.  State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995).

"Corroborating evidence is sufficient if it 'restores confidence in the accomplice's testimony, confirming its truth and pointing to the defendant's guilt in some substantial degree.'"  State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (quoting State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988)).  "Evidence that merely shows the commission of the crime or the circumstances thereof is not sufficient to corroborate accomplice testimony."  State v. Johnson, 616 N.W.2d 720, 727 (Minn. 2000).  Corroborating evidence may be direct or circumstantial; it is viewed in a light most favorable to the verdict and, "while it need not establish a prima facie case of the defendant's guilt, it must point to defendant's guilt in some substantial way."  Id.; see also Minn. Stat. § 634.04 (2002) (providing that accomplice testimony must be corroborated).

Corroborating evidence may include

the defendant's association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant's opportunity and motive to commit the crime and his proximity to the place where the crime was committed.  The defendant's entire conduct may be looked to for corroborating circumstances.  If his connection to the crime may be fairly inferred from those circumstances, the corroboration is sufficient.

 

State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980) (citations omitted).

            Nelson told Scott he drove Yanes to the Jackpot Junction Hotel on November 19, 2001.  Nelson's signature is on the hotel registration card for Room 215.  He admitted his fingerprints would be found on the drug-paraphernalia found in Room 215, specifically the blowtorch and glass tubes.  Nelson told Scott he went to Hutchinson with Yanes and the girl to do laundry.  He also told Scott he called the hotel on November 20, 2001, asked about renting Room 215 for another night, and inquired as to whether housekeeping had been in Room 215.  Nelson thereafter arrived at the hotel with Yanes and the girl and re-registered for Room 215.  He was arrested while walking with Yanes and the girl to Room 215.  Nelson told Scott they returned to the hotel the next day because they had left their things in the room.  Scott and Marquart testified the items left in the room are common in the use and sale of controlled substances.  Drug-related paraphernalia was found on Nelson's person.  The record contains sufficient evidence to corroborate Yanes's accomplice testimony.

3.         Nelson filed a pro se brief.  To the extent Nelson raises facts not in the record, those facts are not properly before this court and are not considered.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1983).

            It is not clear from Nelson's pro se brief if he is raising the argument of ineffective assistance of counsel.  If he is, a postconviction evidentiary hearing is the preferred method for raising this claim.  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000).  We do address the issue here.

            Affirmed.

            * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.